Why Jürgen Klopp is Wrong: The CAS Appeal was a Good Day for Football

More importantly, again, there is no evidence whatsoever…’ – Thus opens paragraph 242 on page 69 of the final award released by CAS on Tuesday. It is said in relation to a claim made by UEFA.

The document is titled ‘Manchester City FC v. UEFA’. We already knew the result. City had been declared winners fifteen days prior, the two-year Champions League ban overturned. But, we did not how CAS had reached their judgement.

We did know, however, that Liverpool manager Jürgen Klopp, in spite of an absence of the facts, thought that the verdict represented ‘a bad day’ for football. Well, the intricacies of the case are out in the open now. And there is only one fair and rational conclusion. Klopp is wrong. The upholding of City’s appeal was a good day for football. Here’s why…

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1. UEFA’s case relied upon SIX emails out of 5.5 million stolen from the club

This point in itself was quite a shocking revelation from Tuesday’s release. The Portuguese hacker Rui Pinto managed to successfully steal 5.5m emails from City’s servers. At CAS, City never confirmed the legitimacy of the hacked emails, but it appears certain that they were real.

Now, it’s clear that they were stolen with a malicious intent. And a person or persons with an agenda against City meticulously searched through that huge treasure trove of documents, and could only muster a grand total of six (plus one attachment) that could appear to suggest some form of wrongdoing. That works out at 0.000109090909091% of the stolen material.

I’d tentatively suggest that if any big business was to have such a large amount of documents hacked, you’d also be able to, out of context and with a bit of creativity (more on this shortly), frame at least six of them in such a way – as Der Spiegel, and, subsequently, UEFA did – that could lead a fair-minded observer to infer something illicit may have taken place.

Furthermore, one of those six emails had been edited; City’s claim was that some documents ‘have been edited to achieve a particular presentation’. CAS’s judgement was that ‘Leaked Email No. 4…is in fact a combination of two separate emails’, which ‘gives a somewhat distorted impression’. Still, the CAS Panel felt that this did not substantially alter UEFA’s case, which was a reasonable interpretation. The emails had been edited together to make it look more damning, but the content itself was not doctored.

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Additionally, it was revealed that the first leaked email was sent two years prior to the implementation of FFP. CAS comment that even if the content was proven to have been true and acted upon, ‘there would have been nothing wrong with channelling equity through sponsors’. UEFA provided zero evidence that the practice, which they could not even establish happened in the first place at a time when it was permissible, continued once it became prohibited.

This should be a powerful reminder of the questionable basis on which UEFA was reaching such severe and extensive conclusions. Six emails stolen by a man currently facing criminal prosecution in Portugal, stripped of context, framed and edited to put City in the worst possible light. UEFA, on the basis of this, concluded that City disguised equity funding as sponsorship income and banned City from the Champions League for two years and imposed a substantial £25m fine. CAS confirms that UEFA’s case against City had been ‘entirely premised on the Leaked Emails’.

Was it a bad day for football that an independent court decided that severe allegations based on such material could simply not come close to attaining the burden of ‘comfortable satisfaction’? Klopp seems to believe so.

Which leads on to…

2. “No evidence”…“unparticularised and unproven”…“not established”

Reading the final award, there is a theme that crops up again, and again, and again, and again. It is absolutely replete with references to the scarcity of evidence UEFA provided (in some cases, literally none at all) to substantiate its allegations. Almost every time the CAS panel discuss UEFA’s claims, there is a conclusion that something either has no evidence, insufficient evidence, is unproven, not established or some variation thereof. Remember, it is on the basis of such claims that they have punished City.

We even get a fancy sounding ‘unparticularised and unproven’ at one point, in reference to UEFA’s claim about the source of Etihad’s funding. In labelling it ‘unparticularised’, the CAS Panel appears to be essentially saying that UEFA are not even sure themselves of the details of what they are alleging to have happened.

It’s just a vague accusation that the funding from Etihad did not actually come from Etihad, but rather than elaborate (or, you know, do something kinda useful like provide evidence) UEFA basically shrugged and left it at that. 

Won’t somebody think of the children? Lock City up now and throw away the key. They’ve done…something? We’re not sure precisely what or how, we’ll get back to you on that, but come on! Look at them! They’re guilty! We have six emails! Please CAS panel, please look at us. We’re on our knees. We are begging here. Javier Tebas won’t leave us alone. We have 37 missed calls from him. Help!

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Another notable example of this is on page 69, some way through the decision, at the beginning of paragraph 242. The issue being discussed is whether or not what was mooted in the Leaked Emails was ever acted upon, in relation to suggestions that the Etihad sponsorship was merely a guise for equity funding.

More importantly, again, there is no evidence whatsoever that Etihad was somehow in on the arrangement discussed in Leaked Email No.2 or the payments processed in MCFC’s creditor ledger’. The opening of the sentence is almost dripping with disdain. It is a point in the award where the CAS Panel appear a little bit bored, if not irritated, by the whole affair. UEFA have made an allegation, and what they have produced to back it up? The answer is the amount of trophies Manchester United have won in the past three seasons. Zero. Zilch. Nothing. Diddly squat. Not a tiddlywink.

Was it a bad day for football that an independent court decided that it would not be right to punish City so severely for claims that were unproven and often had zero or minimal supporting evidence? Klopp seems to think so.

But it’s unfair to put the focus just on UEFA. The onus was on them to meet the burden of proof but City were, after all, the accused. Let’s see if at least one side managed to provide CAS with anything useful.

3. Shock and Horror: City provided evidence at CAS

This is the point that is going to be hardest to stomach for Herr Klopp, and which journalists have done a remarkable job of treating like John Cena. It was not simply that the CAS Panel did not think the evidence provided by UEFA amounted to much. City actually provided their own evidence too. And much of it, CAS found convincing.

Let’s look at a few examples. On page 67, paragraph 226, CAS refer to UEFA’s inference that a reference to “Mohamed” in a leaked email essentially meant that ADUG would remit funds to City through sponsors; in direct contravention of FFP rules. However, not only do CAS say that there is ‘no evidence’ to support this inference, they state quite clearly that ‘it is contradicted by the witness evidence and accounting evidence set out below’.

This is another recurrent theme. Not only do UEFA’s claims lack evidence, it is often at odds with the evidence City provide. A good instance of this is in relation to the funding for the Etihad sponsorship. CAS state that the emails and City’s ledger entries ‘are not sufficient evidence’ to support UEFA’s claims, before adding ‘in particular if the witness evidence…and the accounting evidence…are added to the equation’.

The inference, to a layman, is that even if City were unable to rebut UEFA’s claims, the evidence simply was not there to sustain the argument anyway. At one point CAS state that a claim by UEFA about funds being channelled through unidentified third parties is ‘based on innuendo’. That would be damning enough, but City actively provided evidence that undermined these poorly-evidenced allegations.

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The evidence, which ranges from witness testimony from the likes of Simon Pearce, to a letter from Sheikh Mansour, is always treated with credibility by the Panel. As are the audited accounts and expert testimony in that sphere. An example is on page 74. The Panel concludes that the conclusions by international auditors Ernst & Young ‘do support MCFC’s case. In particular, the theory that ADUG directly funded or reimbursed Etihad for its sponsorship contributions to MCFC is discredited.’

Look at that. Discredited. A central charge by UEFA, dismissed. Any journalist of repute should be informing their readers of such facts. You’d think they might be somewhat pertinent to understanding the CAS verdict. Instead, they want to focus on other things.

4. City did not win because UEFA were time-barred

When the initial CAS verdict was released, there was nothing more inevitable than journalists frantically scouring through it in the hope of stumbling upon a sign that City prevailed merely on a “technicality”. Of course, when CAS stated that UEFA were ‘time-barred’ in relation to some allegations, the journalists lapped it up and interpreted it to mean “City were guilty as sin but UEFA’s own rules provided a loophole”.

This is simply untrue and not at all the correct way of interpreting the judgement. Let’s look why it is wrong to state that City only won because UEFA were time-barred.

The Etisalat sponsorship was deemed by CAS to be out of bounds to UEFA’s investigatory powers. The allegations about disguised equity funding through Etisalat were time-barred. Thus, CAS do not comment on the substance of UEFA’s argument or City’s counterpoints as they do not need to.

However, we know two things. We know that UEFA’s case resided in the six emails, and their interpretation of City’s evidence such as audited accounts. As we see with the dim view CAS takes of UEFA’s evidence in the Etihad arguments put forward, which were only partially time-barred, this was far too weak to satisfy the Panel. The emails alone simply cannot sustain the allegations UEFA made. It’s guesswork. And CAS treated it as such. 

There is nothing to suggest that the claims about Etisalat would have fared any differently, as the evidence had the same insurmountable issues.

Indeed, City, as they did in the Etihad arguments, provided evidence including audited accounts, testimony from Etisalat executives, a letter from Sheikh Mansour, and expert witness testimony against UEFA’s claims in regards to the allegations about Etisalat. In fact, if you look at the evidence City provide to often successfully counter UEFA’s claims about Etihad’s sponsorship, it often covers the Etisalat allegations too.

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This is significant, as I think anybody who reads the final award would find it an arduous task to put forward a credible case as to why the CAS Panel would not have reached an identical verdict in the matter of the Etisalat sponsorship as they did with Etihad, had it not been time-barred. 

The conclusion from reading the final award is inescapable: UEFA simply did not have the evidence to even come close to persuading CAS to agree with their allegations, and that’s before we even consider City’s counterpoints.

The fact it was time-barred simply meant the CAS Panel declared it out of bounds for UEFA to investigate, and they could avoid offering an opinion on the substance of the claims either way. City still mounted a robust defence of the Etisalat allegations, but good luck finding a journalist who discloses that.

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It was not a bad day for football that justice prevailed. It would not be justice if a powerful, monopolistic institution such as UEFA was allowed to disregard the need for evidence-based decisions and hand down drastic punishments to clubs, and those accused had no recourse to an independent body to have their case heard.

Anybody with even a hint of open-mindedness should find it difficult to read the full details of the case heard at CAS and conclude that it was only right that City should not be punished on the basis of the evidence provided.

Whether they still want to believe City could have committed some wrongdoing, even if not the specific charges alleged, and it was simply the case that UEFA were on the right trail but could not prove any of it, that’s fine. Nobody is pretending that City are a moral paragon, or that it has been proven beyond all doubt that City did nothing wrong. Of course it remains a possibility, and the leaked emails certainly do not reflect well on the club, even if UEFA’s interpretation has been rejected.

What is not legitimate, however, is to believe that City should be punished based on nothing other than innuendo, suspicion and conjecture. And let’s be clear, UEFA’s case was built on little more than that.

The inescapable conclusion is that Jurgen Klopp, like many rival fans and journalists, has allowed bitterness to override his rationality. In doing so, he has adopted a philosophy that is inspired by Peep Show’s deadbeat Jeremy Usborne – ‘Justice is done. Not actual justice, but what I wanted to happen, which is basically the same thing’.

Klopp, rival fans, and a horde of intellectually vapid journalists slavishly mining for clicks and attention wanted justice. Not actual justice. Not the actual truth to be heard. Not what the evidence tells them. Just City to be punished and made to suffer – because that, to them, is the only justice that they will ever accept.

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You can follow the author on Twitter here: @MDGough96

You can follow us for live updates here: @City_Xtra

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